Splitting Causation: First Circuit Sets The Stage By Accepting Anti-Kickback Appeal

• Published date: 18 December 2023
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation
• Law Firm: Arnold & Porter
• Author: Mr Christian D. Sheehan and Robert G. Casta'eda

The U.S. Court of Appeals for the First Circuit may soon contribute to a widening circuit split over the issue of what causation standard under the Anti-Kickback Statute (AKS) triggers liability under the False Claims Act (FCA).

On November 17, 2023, the First Circuit granted the defendant's petition to appeal the summary judgment ruling in United States v. Teva Pharm. USA Inc., No. 20-11548-NMG, 2023 WL 4565105 (D. Mass. July 14, 2023). The First Circuit, noting that it expressed "no view as to relevant legal issues," acknowledged that an "immediate review" of the Massachusetts district court's ruling was in order.

The First Circuit's decision could widen the growing circuit split on the issue of what is required under the FCA for a claim to be false because it "resulted from" a violation of the AKS. Under the AKS, "a claim that includes items or services resulting from a violation ... constitutes a false or fraudulent claim" under the FCA. 42 U.S.C. ' 1320a-7b(g). As we blogged previously, the defendant in Teva relied on the Sixth and Eighth Circuits' causation standard, which requires "but-for" causation between an alleged kickback violation and a specific claim to establish liability under the FCA. The...